Citizens in Independence, Michigan (pop. 32,000) want to protect their independence from big box stores by building up a war chest to fight them legally if they sue the township. According to the Detroit Free Press, a group called the Citizens for Orderly Growth (COG) has proposed a “half-mill tax” to be assessed only if needed, between the years 2006 and 2010, that would be earmarked for a legal defense fund to challenge any big box retailer that tries to litigate its way into town. The new tax would raise around $750,000. The township’s Board of Trustees will take up the idea at its Aug. 2 and Aug. 16 meetings. The legal defense tax was prompted by a developer’s proposal last February to rezone land for a 400,000 s.f. project, including a Wal-Mart supercenter store off Route 75. COG is gathering signatures now aiming for a special election in November. “When a developer wonders if he can bully the township, they might think, ‘Wait a minute, the township board has the authority to collect a defense fund to fight me,’ and maybe they’ll just leave us alone,” Neil Wallace, an attorney leading the petition drive, told the Free Press. Local officials fear that if the developer is denied his zoning change, he will sue the township. Sprawl-Busters told the Free Press that courts favor zoning laws — the 70 acres are designated for residential building — and judges are reluctant to substitute their judgment for that of local officials when interpreting their own zoning code, unless the town has been arbitrary and capricious. But even if the developer loses, it will cost the township money to play the legal game. Hence the proposed tax. “If Wal-Mart shows up with a lawyer and sitting across is a citizens group without one, local officials are worried about litigation by Wal-Mart, not by citizens,” the Free Press quoted Sprawl-Busters as saying. COG estimates that the average homeowner in Independence Township would pay $69 if the proposal passes. “I have mixed emotions about it,” one township official said. “Maybe developers will be scared off by $750,000 in a fund.”
The likelihood that a developer would win in court over this case is very small, given the fact that the land in question is simply not zoned for commercial use, and the township’s comprehensive land use plan does not call for such a use either. If the township properly lists out its “findings of fact” when writing up its decision, including the fact that the project is inconsistent with the township’s land use goals, and not zoned correctly, they will prevail in any court challenge. A number of citizens groups have raised money to help their community fight off a legal challenge, but we are not aware of a special tax being raised to do so. It’s a creative way to raise the issue, and to remind citizens that when these developers cannot get what they want by regulation, they will try to get it by litigation. Such developers will never make good neighbors, and if they cannot read a zoning map, they deserve to be rejected. The town should ask them to pay their court costs as well, and not make citizens pay for a capricious lawsuit by a developer.
